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The Legality of the Taliban Swap

There is a lot of talk here and throughout the media about the recent swap of five Taliban prisoners held at Gitmo in return for an American soldier. Personally, the whole things smells like a plot from the HBO series “Homeland.” This article will focus on the alleged illegality of Obama’s failure to notify Congress of the impending deal. As will become clear, I firmly believe the administration acted illegallyat the most and hypocritically at the least.

The reasons for coming to this conclusion are the reasons proffered by the administration for the deal in the first place, wording of the statute in question, and the constitutional roles of Congress and the Commander-in-Chief when it comes to the military. One issue is Section 528 of the Defense Authorization Act which prohibits the President from using the appropriated funds for transferring any Gitmo prisoner without first notifying Congress. There is a technicality in that section which specifies the movement of these prisoners to the mainland United States or any territory of the US. That would make sense since at the time the bill was debated, there was talk of trying these people in US courts in New York. Since the five Taliban prisoners were transferred to Qatar, Obama may have technically avoided any legal question as concerns that aspect of the law (Section 528). However, there is still the 30-day notice requirement which was clearly violated.

From most press accounts, this deal did not come about over night. At one time, apparently cash for the American soldier was on the table. Furthermore, since intermediaries were used to finalize the deal including coordination between Taliban leaders, the United States, Pakistan and Qatar, this was not an instantaneous decision on the part of the administration. Why Congress was not notified of the impending deal- no matter the point in time- is not fully explained beyond the fact that the administration expected congressional disapproval of the deal. In other words, they (Congress) were deliberately kept in the dark because they (Obama) were going to do what they wanted to do regardless.

Secondly, the reason the administration gave for the deal was that Bowe Bergdahl’s health was deteriorating. They based this on a December 2013 video, but then waited six months to make the deal. We can excuse military and intelligence 0fficials for misdiagnosing someone based upon a video. Perhaps if the administration in December 2013 had gone to Congress and informed them of what they thought were the facts at the time and that there was an opportunity to gain his release- even if it meant the release of 5 Taliban Gitmo detainees- the administration would have a greater legal leg to stand upon. In certain circumstances, the president can, as Commander-in-Chief, clearly move in instances where “time is of the essence.” One can understand that in such circumstances a 30-day notification requirement could be a hindrance in their constitutional duties. That is clearly not the case here considering the fact that this was in the making for six months, maybe longer. In hindsight the health excuse rings very hollow. Even not “in hindsight” the administration’s reasons make no sense since despite this alleged bad health, the deal was finalized six months later.

The newest reason for not informing Congress prior to the release is that when the Defense Bill was signed into law, Obama issued a signing statement which he now uses as cover for his failure to notify Congress. Granted, Obama is not the first to issue signing statements, but it is hypocritical since he was a very vocal opponent of them when running for President. What was not right for Bush is apparently just fine for Obama. Further, the use of the signing statement to go around Congressional notification is, in effect, a de facto line item veto which is unconstitutional.

Of course, the whole issue comes down to whether Congress can even place these restrictions on the president as Commander-in-Chief. History is rife with such examples. For example, during the Vietnam War, Congress forbade the use of the United States military for incursions into Cambodia. In the 1980s, Congress forbade the selling of arms or military assistance to Contra rebels in Nicaragua. Yes, both presidents then violated those congressional mandates and both were held accountable.

The pertinent part of the United States Constitution is Article 1, Section 8 which grants Congress the power to “make rules for the government and regulation of the land and naval forces” and “to raise and support armies.” The president is expressly denied these powers. In short, the president does not have total control over the military or foreign policy once funds are appropriated. This episode is reminiscent of the Stuart dynasty in Britain which frequently waged war without the approval of Parliament. In fact, they often refused to call Parliament into session knowing full well they would refuse to approve the wars or appropriate funds. This is exactly what Obama is doing here- circumventing the spirit of the Constitution and the sharing of the government’s military/foreign policy powers between the Executive and the Legislative branches.

That is why our Framers gave Congress the power of the purse over military appropriations and then, within those appropriations, to specify how those funds can or cannot be used. The president may be in charge of commanding the army, but it is Congress that supports, governs, regulates, disciplines, coordinates and, most importantly, limits those forces, especially appropriated funds.

Furthermore, in defense appropriation bills (like the one at issue here) there were numerous restrictions placed on the Bush administration- especially regarding the use of torture and terrorist detainees. Although Bush issued a signing statement questioning these restrictions, they were in the context of the “time of the essence” concept. Although there was this general restriction against “torture,” the Bush administration reserved that right if there was imminent danger to the United States or American lives. An at-least six month prisoner swap negotiation clearly fails that test. Conceivably, Obama could assert that an American life was at stake, but the time frame, the ambiguity of the original diagnosis of “bad health,” and the general circumstances negates that argument totally.

Additionally, although Obama may have a technical out under Section 528, another section- 1028 (c) (2)- specifically sets rules for the transfer of Gitmo detainees/prisoners. The president has that power to do so provided the Secretary of Defense provides Congress with certification 30 days prior to the release and attesting to the fact the released persons will not return to a life of terrorism, or that steps will be taken to avoid or mitigate that scenario. Congress even anticipated certain situations where this provision may be cumbersome and waivers of the 30-day period could be granted with proper notification. Thus, when they decided they were going to negotiate for the release of Bergdahl in December, 2013 they could have gone to Congress and sought a waiver and said it could happen tomorrow, next month, or six months from now. That would have provided the legal cover for their actions now. And, this certification is, in essence, the opinion of the Defense Department and although the certification/notification must be delivered 30 days before the release, assuming these steps were followed, Congress can scream, bitch, and holler and disagree with the DOD certification, but the deal would go through nevertheless.

Instead, some sources have noted that the administration deliberately failed to notify Congress of the swap knowing full well some members of Congress would possibly disagree. The transfer certification requires that the released not present a future danger to the United States. Obama’s own Defense Department and intelligence community clearly came to the conclusion they did not meet that criteria. The administration could not seek a certification and transfer because their own findings were that these were really bad guys and they were designated for “indefinite detention without charges.” However, that initial finding can be overturned by the Secretary of Defense and conceivably could have had they given Congress the mitigating procedures such as the 1-year ban on travel out of Qatar.

The president could have conceivably proceeded and there would be no legal problems had there at least been some form of official notification. And notifying one or two members of Congress and bypassing the official chain of command in Congress does not suffice, as some Democrats in Congress are now saying as they rush to Obama’s defense.

This episode is indicative of so much that is wrong about the Obama administration when it comes to terrorism, the military and what suffices for a “foreign policy.” This is the epitome of ineptitude and has more in common with some Mad magazine comic strip. Whether it is Susan Rice describing a potential deserter from the military in glowing terms (then backtracking), the Rose Garden announcement with the Idaho Taliban father speaking Pushtan and praising Allah, being caught off guard regarding the political blowback, or the stammering defenses offered for the deal and not notifying Congress, the whole episode would be funny if it were not so despicable.

And whether a member of Congress is Democratic or Republican or Independent, they should now be painfully aware of the fact that Obama lacks any respect for that institution. He has taken the imperial presidency and raised it to new heights. They should have realized this years ago with Fast and Furious…or the IRS scandal…or the Snowden debacle and the NSA…or the waiting lists at the VA. Perhaps if Obama were doing his job as Commander-in-Chief instead of holding beer summits and calling gay athletes to congratulate them on their draft into the NFL, things may be different. But somehow I seriously doubt it. Which is what happens when America elects a two-bit narcissistic community organizer to the highest office. True Americans should be ashamed to call Obama their “leader.” His disdain for Congress is outshined only by his disdain for the Constitution.